An employee of the Government of Canada (“Johnson”) succeeded in setting aside the settlement of his Human Rights complaint that had been approved by the Canadian Human Rights Commission (the “Commission”) after a conciliation session where a letter of understanding had been drafted containing a number of agreements reached by the parties

Administrative law – Decisions of administrative tribunals – Human Rights Commission – Employment law – Appointment – Human rights complaints – Discrimination – Race – Judicial review – Standard of review – Reasonableness simpliciter

Johnson v. Canada (Attorney General), [2007] F.C.J. No 1323, Federal Court, October 4, 2007, O’Keefe J.

In April 2003, Johnson filed a complaint with the Commission alleging adverse treatment based on his race and colour, and specifically that the Department of National Defence had denied him promotions and other work opportunities. After a preliminary investigation and the appointment of a Human Rights Tribunal, the Commission indicated that the case required an assessment of the credibility of the parties and the evidence.

The parties attended a conciliation session in February 2006 in an effort to resolve the complaint. The parties did not meet; a conciliator conducted shuttle negotiations between them. After 14 hours, the conciliator drafted a letter of understanding between the parties. The parties, their legal counsel and the conciliator signed the letter of understanding. The letter of understanding contained items of agreement between the parties, but also contemplated that minutes of settlement would be drafted and signed by the parties. The Department of National Defence was to draft a letter of employment for the applicant and to identify key activities for the job position that to which Johnston was to be assigned.

In March 2006, the Department of National Defence fulfilled its requirements under the letter of understanding and advised the conciliator accordingly. The conciliator drafted the minutes of settlement and circulated them to the parties. Johnson refused to sign the minutes of settlement. The conciliator issued a report to the Commission, and recommended that the Commission approve the terms of settlement “agreed to by the parties” pursuant to s. 48 of the Canadian Human Rights Act (the “Act“). The Commission approved the terms of settlement in accordance with the minutes that had been drafted.

The Act does not contain a privative clause or a statutory right of appeal. The question is one of mixed fact and law, indicating a mid-level of deference should be accorded. The question of what constitutes a settlement is one on which the Commission does not have more relative expertise than the Court, indicating a less deferential standard of review. The Act has the purpose of protecting human and individual rights, and this factor was interpreted as suggesting mid-level deference. The Court held that the appropriate standard of review for a decision of the Commission under s. 48 of the Act is reasonableness simpliciter.

The Court held that the Commission erred in finding that a settlement existed. While the letter of understanding was signed by both parties as an interim settlement, with matters still to be completed, some of those matters (such as the letter of employment) were to be “mutually agreed upon“. The Court held that Johnson therefore had the option to show his dissatisfaction with these items by not signing the minutes of settlement.

The Court noted that the Commission had before it, on the decision about whether or not to approve the settlement, a letter from Johnson’s counsel expressing that he was not satisfied with the letter of employment and job description, and that he therefore refused to sign the minutes of settlement. The decision to approve the settlement was unreasonable, in that it did not stand up to a somewhat probing examination and was inconsistent with the letter of understanding expressly stating that the items to be determined were to be mutually agreed upon.

In the result, the application for judicial review was allowed and the matter was referred back to the Commission.

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